Ever since Justice David Souter announced his intention to retire at the end of the current term of the Supreme Court, speculation has been rampant that President Obama will nominate a jurist who is a woman, an African-American, or a Latino in an attempt to bring greater gender and/or cultural diversity to the Supreme Court.
And oh, how that speculation has rankled so many.
"Let's be color-blind," opponents say.
"The nominee should be chosen on the basis of their legal record, not their cultural background or gender."
"This is reverse discrimination."
It is as if large sectors of the white male community are outraged that President Obama would seek to place someone on the Court who is qualified for the job but who is neither white nor male (a Court which, including Justice Souter, currently has seven white males among its nine members).
But just this week we've been reminded that our past is colored by significant wrongs and evils in which we were not blind to issues of race, religion, or gender. John Demjanjuk, an 89 year-old retired autoworker from Ohio, is now in jail in Germany awaiting trial for war crimes allegedly perpetrated during World War II. It wasn't that long ago that people were thrown into furnaces because of their religion, or denied jobs because of their gender, or denied the right to vote or marry whoever they chose or live where they desired because of their race. It wasn't that long ago.
Ours is a nation of laws, and that is why we need the best legal scholars sitting in the bench. However, legal scholarship is not the only appropriate criteria for nominating somoene to the bench, for our nation's laws have been written, interpreted, and applied in the real world, one in which extra-legal biases exist and thrive. We need people of diverse extra-legal experience – from professional experience to cultural backgrounds to gender – on the Court. For laws are neither written nor interpreted in a vacuum, nor do they exist solely for the sake of scholarly debate. Rather, our nations laws and its Constitution serve not their own interests but the interest of those who are named in the opening words of our nation's Constitution: We the People.
And so, if in choosing a Supreme Court nominee President Obama has a preferrential option for someone who is experienced at law and intellectually qualified, and who is also a member of a group that has historically been marginalized, that's fine with me. For our nation's laws must serve the interests of all who pledge allegience to the flag, of all who live in this land, of all who constitute We the People.